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We have this extraordinary situation. Both parties are in the wrong, the ICC and the Board of Control for Cricket in India (BCCI). The ICC has legality on its side and very little else.

The BCCI has a righteous sense of grievance but has clearly flouted ICC rules. The United Cricket Board of South Africa acted entirely on its government's instructions and can be considered a benevolent neutral, a neutrality that clearly benefits one party.

There is, first of all, Mike Denness the match referee who acted like a Roman Emperor (Rome has spoken, the case is closed) but who, in the process of handing out some very harsh decisions, himself did not follow the laid-out procedure. For example, by fining Sachin Tendulkar and banning him for one match, he found him guilty of ball- tampering. In that case, the 'tampered' ball should have been changed. It wasn't. This a breach of the law.

Furthermore, the ball is in the possession of the umpires after every over and they can inspect it whenever they like. The umpires did not report any tampering with the ball to the match-referee. This means Denness went by what he saw on television. Could he not have got on the inter-com to the umpires and appraised them of what he had seen? Or was he not on speaking terms with the umpires?

In fact, in all the decisions he took, he acted on his own, there were no complaints from the umpires and the match- referee may have the authority to act arbitrarily but this violates the spirit of the rules. The umpires cannot be marginalised or worse, ignored. To the extent that there is no appeal against the match referee's decisions (which goes against natural justice) the ICC's own hands were tied, proving yet again that the law is an ass.

The ICC has a penchant for shooting itself in the foot. It could easily have mollified Jagmohan Dalmiya by holding the punishments in abeyance till a special committee reviewed them on the grounds that they were excessively harsh.

In other words a certain amount of flexibility could have been shown. As matters stand, the match-referee has more powers than the President of the United States. He, after all, can be impeached for abuse of power and this is precisely what Denness did - abuse power. He converted the match referee into a one man judge, jury and hangman. More than that he changed the ICC code of conduct into a penal code.

But as matters stood, the ICC had no option but to stand by Denness. Not to have done so would have been to abdicate its authority. I think some sort of via media could have been worked out between Dalmiya and Malcolm Gray and now England's tour of India has been put under stress.

Will India play Virender Sehwag who was banned for one Test match? He did not play in the Centurion Test match but since the ICC declared that an unofficial Test match, the ban on him stays, according to the ICC. India, on the other hand, do not accept the match referee's punishments and wants them reviewed (no provision exists for this) and so there is a stand-off. It can be avoided by dropping Sehwag but that would be to accept the ruling of Denness.

Instinctively, I am on the side of the Indian Cricket Board because the ICC has never been even-handed and seems to have one set of rules for countries from the sub-continent and another set of rules for the others. But legally India's position is untenable. Denness may have been a hanging-judge but he was the match referee and had been accepted by India at the start of the series.

The ICC as it is presently structured is seriously flawed and I think a team of management consultants (who should not be from Australia or England) should be brought in and the ICC should be re-vamped in two important respects, the match referee's post should be abolished and the umpires should become final arbiters of what is fair or unfair play and Paul Condon's Anti-Corruption Unit should be shown the door. Investigation of match-fixing should be left to the police and the ICC has no business to be running a detective agency.

Throughout this row which is escalating by the day, one element has been missing which is common sense. Even though he had absolute, arbitrary powers, Denness should have consulted umpires, issued warnings to the two captains, kept the lines of communications open.

The media pounced on the row, throwing objectivity down the drain and taking up fixed, emotive positions. The South African position has changed. Suddenly, it finds that if the cricket world were to split the Cricket World Cup 2003 could be in danger. Having acted in support of India South Africa is fast back-tracking. Is the shadow of Ali Bacher looming around?

The ICC has had its authority challenged and it has responded in its own blundering way. Which is to treat India as if it was still a part of the British Empire, albeit the brightest jewel in the crown, in that it has the sponsors and the money. But the issue is too minor to have made it a matter of national pride.

Personally, I don't think Tendulkar was guilty of ball- tampering and if the Indian players were appealing excessively, so too were the South Africans, particularly Shaun Pollock but they got off scot-free. It is this that rankles. I don't think we should have two Australians running cricket. That is why there is talk that cricket will split on racial lines.

© Dawn